Proposal To Reissue and Modify Nationwide Permits, 9174-9207 [2011-3371]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army, Corps of Engineers

[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Notices]
[Pages 9174-9207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3371]



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Vol. 76

Wednesday,

No. 32

February 16, 2011

Part III





Department of Defense





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Department of the Army, Corps of Engineers



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Proposal To Reissue and Modify Nationwide Permits; Notice

Federal Register / Vol. 76 , No. 32 / Wednesday, February 16, 2011 / 
Notices

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

ZRIN 0710-ZA05


Proposal To Reissue and Modify Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting 
comments for the reissuance of the existing nationwide permits (NWPs), 
general conditions, and definitions, with some modifications. The Corps 
is also proposing to issue two new NWPs and two new general conditions. 
The Corps is requesting comment on all aspects of these proposed 
nationwide permits. More specifically, the Corps is requesting comments 
on options for NWP 21, which authorizes discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining activities, such as reissuing NWP 21 with modifications or not 
reissuing NWP 21. The Corps is also seeking comments on whether to 
reissue NWP 48 with modifications to authorize new commercial shellfish 
aquaculture activities or to issue a separate NWP to authorize only new 
commercial shellfish aquaculture activities. The reissuance process 
starts with today's publication of the proposed NWPs in the Federal 
Register for a 60-day comment period. The purpose of this Federal 
Register notice is to solicit comments on the proposed new and modified 
NWPs, as well as the NWP general conditions and definitions. Shortly 
after the publication of this Federal Register notice, each Corps 
district will publish a public notice to solicit comments on their 
proposed regional conditions for the new and modified NWPs. The comment 
period for these district public notices will be 45 days.

DATES: Submit comments on or before April 18, 2011.

ADDRESSES: You may submit comments, identified by docket number COE-
2010-0035 and/or ZRIN 0710-ZA05, by any of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: NWP2012@usace.army.mil. Include the docket number, COE-
2010-0035, and/or the ZRIN number, 0710-ZA05, in the subject line of 
the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street, 
NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2010-0035 
and/or ZRIN 0710-ZA05. All comments received will be included in the 
public docket without change and may be made available on-line at 
https://www.regulations.gov, including any personal information 
provided, unless the commenter indicates that the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI, or otherwise protected, 
through regulations.gov or e-mail. The regulations.gov Web site is an 
anonymous access system, which means we will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an e-mail directly to the Corps without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, we 
recommend that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification, we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to regulations.gov. All documents in the docket 
are listed. Although listed in the index, some information is not 
publicly available, such as CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Mr. Dave Casey at 907-283-3519 or 202-
761-5903 or Mr. David Olson at 202-761-4922 or access the U.S. Army 
Corps of Engineers Regulatory Home Page at https://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.

SUPPLEMENTARY INFORMATION: 

Background

    The current nationwide permits (NWPs), which were published in the 
March 12, 2007, issue of the Federal Register (72 FR 11092) expire on 
March 18, 2012. With this Federal Register notice, we are beginning the 
process for reissuing the NWPs so that the reissued NWPs will be in 
effect as the current NWPs expire.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States. Activities authorized by 
NWPs must be similar in nature, cause only minimal adverse 
environmental effects when performed separately, and cause only minimal 
cumulative adverse effect on the aquatic environment. Nationwide 
permits can also be issued to authorize activities pursuant to Section 
10 of the Rivers and Harbors Act of 1899. The NWP program is designed 
to provide timely authorizations for the regulated public while 
protecting the Nation's aquatic resources.
    Today's proposal to reissue 48 of the 49 existing NWPs with some 
modifications and to issue two new NWPs reflects the Corps commitment 
to its environmental protection mission and to aquatic resource 
protection. For the reasons provided below, we are proposing to let one 
NWP expire and not reissue it: NWP 47--Pipeline Safety Program 
Designated Time Sensitive Inspections and Repairs. We are proposing to 
revise the text of some of the NWPs, general conditions, and 
definitions so that they are clearer and can be more easily understood 
by the regulated public, government personnel, and interested parties, 
while retaining terms and conditions that protect the aquatic 
environment. Making the text of the NWPs clearer and easier to 
understand will also facilitate compliance with these permits, which 
will benefit the aquatic environment. The NWP program allows the Corps 
to authorize activities with minimal adverse environmental impacts in a 
timely manner and protect the aquatic environment. The NWP program also 
allows the Corps to focus its limited resources on more extensive 
evaluation of projects that have the potential for causing 
environmentally damaging adverse effects.
    Through the NWPs, impacts to the aquatic environment may also 
receive additional protection through regional conditions, case-
specific special

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conditions, and case-specific discretionary authority to require 
individual permits. Nationwide permits and other general permits help 
protect the aquatic environment because permit applicants often reduce 
project impacts to meet the restrictive requirements of general permits 
and receive authorization more quickly than they would through the 
individual permit process.
    Thirty of the NWPs proposed for reissuance require pre-construction 
notification (PCN) for certain activities. Twenty of those NWPs require 
PCNs for all activities. Each of the two proposed new NWPs require 
PCNs. Pre-construction notification requirements give the Corps the 
opportunity to evaluate certain proposed NWP activities on a case-by-
case basis to ensure that they will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. This 
case-by-case review often results in adding case-specific conditions to 
the NWP authorization to ensure that impacts to the aquatic environment 
are minimal. Review of a PCN may also result in the Corps asserting 
discretionary authority to require an individual permit if the district 
engineer determines, based on the information provided in the PCN, that 
adverse impacts will be more than minimal, either individually or 
cumulatively, or there are sufficient concerns for any of the Corps 
public interest review factors.
    Regional conditions may be imposed by division engineers to take 
into account regional differences in aquatic resource functions and 
services across the country and to restrict or prohibit the use of NWPs 
to protect those resources. Through regional conditions, a division 
engineer can modify an NWP to require submission of PCNs for certain 
activities. Regional conditions may also restrict or prohibit the use 
of an NWP in certain waters or geographic areas, if the use of that NWP 
in those waters or areas might result in more than minimal individual 
or cumulative adverse effects to the aquatic environment.
    District engineers may impose special conditions on NWP 
authorizations to ensure that the NWP authorizes only activities that 
result in minimal individual and cumulative effects on the aquatic 
environment and other public interest review factors. In addition, 
special conditions will often include compensatory mitigation 
requirements to reduce the project impacts to the minimal level. 
Compensatory mitigation may include the restoration, establishment, 
enhancement, and/or preservation of aquatic habitats, as well as the 
establishment and maintenance of riparian areas next to streams and 
other open waters. Compensatory mitigation can be provided through 
permittee-responsible mitigation, mitigation banks, or in-lieu fee 
programs.

Process for Reissuing the NWPs

    The NWPs reissued on March 12, 2007, went into effect on March 19, 
2007, and expire on March 18, 2012. The reissuance process starts with 
today's publication of the proposed NWPs in the Federal Register for a 
60-day comment period. Requests for a public hearing must be submitted 
in writing to the address in the ADDRESSES section of this notice. 
These requests must state the reason(s) for holding a public hearing. 
If we determine that a public hearing or hearings would assist in 
making a decision on the issuance of the proposed new NWPs, reissuance 
of existing NWPs, or the NWP general conditions or definitions, a 30-
day advance notice will be published in the Federal Register to advise 
interested parties of the date(s) and location(s) for the public 
hearing(s). Any announcement of public hearings would also be posted as 
a supporting material in the docket at https://www.regulations.gov as 
well as the Corps regulatory home page at https://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.
    Shortly after the publication of this Federal Register notice, 
Corps district offices will issue public notices to solicit comments on 
proposed regional conditions. In their district public notices, 
district engineers may also propose to suspend or revoke some or all of 
these NWPs if they have issued, or are proposing to issue, regional 
general permits, programmatic general permits, or section 404 letters 
of permission for use in lieu of NWPs. The comment period for these 
district public notices will be 45 days.
    After the comment period has ended, we will review the comments 
received in response to this Federal Register notice. Then we will 
draft the final NWPs, and those final draft NWPs will be subjected to 
another review by interested Federal agencies. The final issued NWPs 
will be published in the Federal Register by December 2011. The final 
NWPs will go into effect 90 days after their publication. In the past, 
the schedule normally allowed state governments, tribal governments, 
and EPA a 60-day period for Clean Water Act Section 401 water quality 
certifications (WQCs) as well as Coastal Zone Management Act (CZMA) 
consistency determinations by states. The change to 90 days is made in 
order to meet the requirements of the Department of Commerce that 
require Federal agencies to provide at least 90 days for state 
governments to make their CZMA consistency determinations (see 15 CFR 
930.36(b)). Within this 90-day period, division engineers will also 
develop regional conditions and supplemental decision documents. 
Supplemental decision documents address the environmental 
considerations related to the use of NWPs in a Corps district. The 
supplemental decision documents will certify that the NWPs, with any 
regional conditions or geographic suspensions or revocations, will only 
authorize activities within that Corps district that result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
The regional conditioning and WQC/CZMA processes are discussed below.

Compliance With Section 404(e) of the Clean Water Act

    The proposed NWPs are issued in accordance with Section 404(e) of 
the Clean Water Act. These NWPs authorize categories of activities that 
are similar in nature. The ``similar in nature'' requirement does not 
mean that activities authorized by an NWP must be identical to each 
other. We believe that the ``categories of activities that are similar 
in nature'' requirement of section 404(e) is to be interpreted broadly, 
for practical implementation of this general permit program. Nationwide 
permits, as well as other general permits, are intended to reduce 
administrative burdens on the Corps and the regulated public, by 
efficiently authorizing activities that have minimal adverse 
environmental effects.
    As for the minimal adverse effects provision of section 404(e), the 
various terms and conditions of these NWPs, including the provisions in 
the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(e) that allow 
district engineers to exercise discretionary authority, ensure 
compliance with this requirement. A decision document will be prepared 
for each NWP to address the requirements of the National Environmental 
Policy Act and generally discuss the anticipated impacts the NWP will 
have on the Corps public interest review factors. For those NWPs that 
may authorize discharges of dredged or fill material into waters of the 
United States, a 404(b)(1) Guidelines analysis will be provided in the 
decision document. The 404(b)(1) Guidelines analysis will be conducted 
in accordance with 40 CFR 230.7. The draft decision documents for the

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proposed NWPs are available on the internet at: https://www.regulations.gov (docket ID number COE-2010-0035). We are soliciting 
comments on these draft decision documents, and any comments received 
will be considered when preparing the final decision documents for the 
NWPs.

National Environmental Policy Act Compliance

    We have prepared a draft decision document for each proposed NWP. 
Each decision document contains an environmental assessment (EA). If 
the proposed NWP authorizes discharges of dredged or fill material into 
waters of the United States, the decision document will also include a 
404(b)(1) Guidelines analysis conducted in accordance with 40 CFR 
230.7. These decision documents will consider the environmental effects 
of each NWP from a national perspective. Division engineers will issue 
supplemental decision documents to evaluate regional effects on the 
aquatic environment and other public interest review factors. Those 
supplemental decision documents will discuss regional conditions 
imposed by division engineers to protect the aquatic environment and 
ensure that any adverse effects resulting from NWP activities will be 
no more than minimal.
    The assessment of cumulative effects occurs at two levels: national 
and regional (district). However, modifications at the district level 
are made by the appropriate division engineer. There are eight Corps 
division offices in the United States, with 38 district offices. A 
division office may oversee as many as seven districts (Lakes and 
Rivers Division) or as few as two district offices (Pacific Ocean 
Division).
    At the national level, the decision documents issued by Corps 
Headquarters include cumulative effects assessments required by NEPA 
and, if the NWP authorizes discharges of dredged or fill material into 
waters of the United States, the 404(b)(1) Guidelines. The 404(b)(1) 
Guidelines at 40 CFR 230.7(b) require an evaluation of the potential 
individual and cumulative impacts of the category of activities 
authorized under the NWP.
    The supplemental decision documents issued by division engineers 
include cumulative effects assessments at the regional (district) 
level, for each district within the division. For those NWPs that 
authorize section 404 activities, the supplemental decision documents 
will also discuss local concerns relating to the Section 404(b)(1) 
Guidelines, if the national decision documents do not adequately 
address those issues. If the NWP is not suspended or revoked in a 
district, the supplemental decision document includes a certification 
that the use of the NWP in that district, with any applicable regional 
conditions (i.e., applicable in a specific district), will result in 
minimal cumulative adverse environmental effects. The supplemental 
decision documents are prepared by Corps districts, but must be 
approved and formally issued by the appropriate division engineer, 
since the NWP regulations at 33 CFR 330.5(c) state that the division 
engineer has the authority to modify, suspend, or revoke NWP 
authorizations for any specific geographic area within his division. 
Regional conditions are considered NWP modifications. Therefore, when 
the process is completed, each district will have approved supplemental 
decision documents for each NWP, and those supplemental decision 
documents will assess cumulative effects within that district.
    District engineers may also recommend that the division engineer 
exercise discretionary authority to modify, suspend, or revoke case-
specific NWP authorizations within a district to ensure that only 
minimal cumulative adverse effects on the aquatic environment result 
from activities authorized by that NWP. Evaluations by a district 
engineer may result in the division engineer modifying, suspending, or 
revoking NWP authorizations in a particular geographic region or 
watershed at a later time, if the use of an NWP in a particular area 
will result in more than minimal cumulative or individual adverse 
effects on the aquatic environment. Special conditions added to NWP 
authorizations on a case-by-case basis by district engineers, such as 
compensatory mitigation requirements, help ensure that the NWPs 
authorize only activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment.

Acreage Limits and Pre-Construction Notification Thresholds

    We are proposing to retain most of the current acreage limits for 
the NWPs and propose to modify some of the NWPs acreage limits. We are 
also proposing to modify the language concerning the use of waivers in 
NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be 
granted only after the district engineer makes a written determination 
concluding that the discharge will result in minimal adverse effects. 
The modified waiver language will also be applied to NWPs 21, 44, and 
50, as well as proposed new NWPs A and B. We are proposing to replace 
the 25 cubic yard limit for temporary pads in NWP 6 with a \1/10\-acre 
limit for temporary pads. For NWP 50 we are proposing a \1/2\-acre 
limit on non-tidal waters of the United States including the loss of no 
more than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds the district engineer waives the 300 linear foot 
limit by making a written determination concluding that the discharge 
will result in minimal adverse effects. In NWPs 40 and 44 we are 
proposing to increase protection of streams by adding a 300 linear foot 
limit for losses of stream bed, which can be waived for intermittent 
and ephemeral stream beds if the district engineer makes a written 
determination concluding that the discharge will result in minimal 
adverse effects.
    Proposed NWP A, Land-Based Renewable Energy Generation Facilities, 
and proposed NWP B, Water-Based Renewable Energy Generation Pilot 
Projects, have a \1/2\-acre limit for losses of non-tidal waters of the 
United States, including the loss of no more than 300 linear feet of 
stream bed, unless for intermittent and ephemeral stream beds the 
district engineer waives the 300 linear foot limit by making a written 
determination concluding that the discharge will result in minimal 
adverse effects. Both of these proposed NWPs require PCNs.
    In NWP 48, we are proposing to add another PCN threshold for 
proposed expansions of the project area for the production of 
shellfish.

Compliance With the Endangered Species Act

    In its April 6, 2005, decision in National Wildlife Federation et 
al. v. Les Brownlee (No. 03-1392), the U.S. District Court for the 
District of Columbia determined that the Corps is obligated to consult 
with the U.S. Fish and Wildlife Service (FWS) on the effects of the 
NWPs. In response to that decision, on March 13, 2007, the Corps 
initiated Endangered Species Act Section 7(a)(2) programmatic 
consultation with FWS and the National Marine Fisheries Service (NMFS) 
for the current NWPs. NMFS provided a draft biological opinion and the 
Corps provided comments on that draft biological opinion, as well as 
additional information regarding the NWPs to NMFS as well as FWS. The 
Corps also granted an extension of time to the NMFS to provide the next 
draft of the biological opinion, and to the FWS to provide its draft 
biological opinion. Since the 2007 programmatic consultation was not 
completed, the

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Corps has reinitiated programmatic Section 7 consultation for the NWP 
program. Corps districts will consult, as necessary, with the FWS and 
the NMFS for the species that occur in their districts and may develop 
regional conditions to protect listed species and designated critical 
habitat.

Essential Fish Habitat

    The NWP Program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act will be achieved through EFH consultations between 
Corps districts and NMFS regional offices. Corps districts will request 
EFH consultations with the NMFS regional office in cases where 
activities authorized by NWP may adversely affect EFH. The purpose of 
these regional consultations is to determine if implementation of the 
proposed NWPs and regional conditions within a particular region may 
have an adverse effect on EFH. These consultations will be conducted 
according to the EFH consultation regulations at 50 CFR 600.920.

Regional Conditioning of Nationwide Permits

    Under Section 404(e), NWPs can only be issued for those activities 
that result in minimal individual and cumulative adverse effects on the 
aquatic environment. An important mechanism for ensuring compliance 
with this requirement is an effective regional conditioning process. 
Coordination with Federal and state agencies and Indian Tribes, and the 
solicitation of public comments, assist division and district engineers 
in identifying and developing appropriate regional conditions for the 
NWPs. Effective regional conditions protect local aquatic ecosystems 
and helps ensure that the NWPs authorize only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment, and are in the public interest.
    There are two types of regional conditions: (1) Corps regional 
conditions and (2) water quality certification/Coastal Zone Management 
Act consistency determination regional conditions.
    Corps regional conditions may be added to NWPs by division 
engineers after a public notice and comment process and coordination 
with other Federal, state, and local agencies.
    Examples of Corps regional conditions include:
     Restricting the types of waters of the United States where 
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or 
prohibiting the use of some or all of the NWPs in those types of waters 
or in specific watersheds.
     Restricting or prohibiting the use of NWPs in an area 
covered by a Special Area Management Plan, or an Advanced 
Identification study with associated regional general permits.
     Adding pre-construction notification (PCN) requirements to 
NWPs to require notification for all work in certain watersheds or 
certain types of waters of the United States, or lowering the PCN 
threshold.
     Reducing NWP acreage limits in certain types of waters of 
the United States, or specific waterbodies.
     Revoking certain NWPs on a geographic or watershed basis.
     Restricting activities authorized by NWPs to certain times 
of the year in a particular waterbody, to minimize the adverse effects 
of those activities on fish or shellfish spawning, wildlife nesting, or 
other ecologically cyclical events.
     Conditions necessary to ensure compliance with the 
Endangered Species Act and essential fish habitat provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act.
    Corps regional conditions approved by division engineers cannot 
remove or reduce any of the terms and conditions of the NWPs, including 
general conditions and PCN requirements. In other words, Corps regional 
conditions can only be more restrictive than the original NWP terms and 
conditions.
    Regional conditions may also be added to the NWPs as a result of 
water quality certifications (WQCs) issued by states, Indian Tribes, or 
the U.S. EPA, as well as state Coastal Zone Management Act (CZMA) 
consistency determinations.
    At approximately the same time as the publication of this Federal 
Register notice, each Corps district will issue an initial public 
notice. Those initial public notices will include Corps regional 
conditions proposed by our district offices, and will also request 
comments or suggestions for additional Corps regional conditions. The 
initial public notice may also include, for informational purposes 
only, any proposed state or tribal WQC regional conditions or state 
CZMA regional conditions. However, public comment on the state or 
tribal WQC regional conditions or state CZMA regional conditions is 
handled through a separate state or tribal administrative procedures 
process. The public should not address such comments to the Corps.
    In response to the district's initial public notice, interested 
parties may suggest additional Corps regional conditions, or suggest 
suspension or revocation of NWPs in certain geographic areas, such as 
specific watersheds or waterbodies. Such comments should include data 
to support the need for any suggested modifications, suspensions, or 
revocations of NWPs.
    After the NWPs are issued or reissued, the division engineer will 
issue supplemental decision documents for each NWP. These supplemental 
decision documents will address the NWP regional conditions. Each 
supplemental decision document will also include a statement by the 
division engineer, which will certify that the NWP, with approved 
regional conditions, will authorize only activities with minimal 
individual and cumulative adverse effects on the aquatic environment.
    After the division engineer approves the Corps regional conditions, 
each Corps district will issue a final public notice for the NWPs. The 
final public notice will announce both the final Corps regional 
conditions and any final WQC/CZMA regional conditions. The final public 
notices will also announce the final status of water quality 
certifications and CZMA consistency determinations for the NWPs. Corps 
districts may adopt additional regional conditions in future public 
notices (following public notice and comment procedures), if they 
identify a need for such conditions.
    Information on regional conditions and revocation can be obtained 
from the appropriate district engineer, as indicated below. 
Furthermore, this and additional information can be obtained on the 
internet at https://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx. If 
you select a state on this Web site you will be directed to the Web 
site of the appropriate Corps district office.
    In cases where a Corps district has issued a regional general 
permit that authorizes similar activities as one or more NWPs, the 
district will clarify the use of the regional general permit versus the 
NWP(s) during the regional conditioning process. For example, the 
division engineer may revoke the applicable NWP(s) so that only the 
regional general permit may be used to authorize those activities.

Water Quality Certification/Coastal Zone Management Act Consistency 
Determination for Nationwide Permits

    State or Tribal water quality certification, or waiver thereof, is

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required by Section 401 of the Clean Water Act, for activities 
authorized by NWPs which result in a discharge into waters of the 
United States. In addition, any state with a federally-approved CZMA 
plan must agree with the Corps determination that activities authorized 
by NWPs which are within, or will affect any land or water uses or 
natural resources of the state's coastal zone, are consistent with the 
CZMA plan to the maximum extent practicable. Water quality 
certifications and/or CZMA consistency determinations may be issued 
without conditions, issued with conditions, or denied for specific 
NWPs.
    We believe that, in general, the activities authorized by the NWPs 
will not violate State or Tribal water quality standards and will be 
consistent with state CZMA plans. The NWPs are conditioned to ensure 
that adverse environmental effects will be minimal and address the 
types of activities that would be routinely authorized if evaluated 
under the individual permit process. We recognize that in some states 
or Tribal lands there will be a need to add regional conditions, or 
individual state or Tribal review for some activities, to ensure 
compliance with water quality standards and/or consistency with the 
state's CZMA plans. As a practical matter, we intend to work with 
states and Tribes to ensure that NWPs include the necessary conditions 
so that they can issue water quality certifications or CZMA consistency 
concurrences. Therefore, each Corps district will initiate discussions 
with their respective state(s) and Tribe(s), as appropriate, to discuss 
issues of concern and identify regional modification and other 
approaches to address the scope of waters, activities, discharges, and 
PCNs, as appropriate, to resolve these issues. Note that in some states 
the Corps has issued state programmatic general permits (SPGPs), and 
within those states some or all of the NWPs may be suspended or revoked 
by division engineers. Concurrent with today's proposal, district 
engineers may be proposing modification or revocation of the NWPs in 
states where SPGPs will be used in place of some or all of the NWPs.

Section 401 of the Clean Water Act

    This Federal Register notice serves as the Corps application to the 
Tribes, States, or EPA, where appropriate, for water quality 
certification of the activities authorized by these NWPs. The Tribes, 
States, and EPA, where appropriate, are requested to issue, deny, or 
waive water quality certification pursuant to 33 CFR 330.4(c) for these 
NWPs.
    If a state denies a water quality certification for an NWP within 
that state, then the affected activities are not authorized by NWP 
within that state, until a project proponent obtains an individual 
water quality certification, or the water quality certification is 
waived. However, when applicants request approval of such activities, 
and the Corps determines that those activities meet the terms and 
conditions of the NWP, the Corps will issue provisional NWP 
verification letters. The provisional verification letter will contain 
general and regional conditions as well as any project specific 
conditions the Corps determines are necessary for NWP authorization. 
The Corps will notify the applicant that they must obtain a project 
specific water quality certification, or waiver thereof, before they 
are authorized to start work in waters of the United States. That is, 
NWP authorization will be contingent upon obtaining the necessary water 
quality certification or waiver thereof from the State, Tribe, or EPA 
where appropriate. Anyone wanting to perform such activities where pre-
construction notification to the Corps is not required has an 
affirmative responsibility to first obtain a project-specific water 
quality certification or waiver thereof from the Tribe, State, or EPA 
before proceeding under the NWP. This requirement is provided at 33 CFR 
330.4(c).

Section 307 of the Coastal Zone Management Act (CZMA)

    This Federal Register notice serves as the Corps determination that 
the activities authorized by these NWPs are, to the maximum extent 
practicable, consistent with state CZMA programs. This determination is 
contingent upon the addition of state CZMA conditions and/or regional 
conditions, or the issuance by the state of an individual consistency 
concurrence, where necessary. States are requested to agree or disagree 
with the consistency determination following 33 CFR 330.4(d) for these 
NWPs.
    The Corps CZMA consistency determination only applies to NWP 
authorizations for activities that are within, or affect, any land, 
water uses or natural resources of a State's coastal zone. NWP 
authorizations for activities that are not within or would not affect a 
State's coastal zone do not require a Corps CZMA consistency 
determination and thus are not contingent on a State's agreement with 
the Corps consistency determinations.
    If a state disagrees with the Corps consistency determination for 
an NWP, then the affected activities are not authorized by NWP within 
that state, until a project proponent obtains an individual consistency 
determination, or sufficient time (six months) passes after requesting 
a consistency determination for the applicant to make a presumption of 
consistency, as provided for in 33 CFR 330.4(d)(6). However, when 
applicants request approval of such activities, and the Corps 
determines that those activities meet the terms and conditions of the 
NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary for NWP authorization. The Corps will notify 
the applicant that they must obtain a project specific CZMA consistency 
determination before they are authorized to start work in waters of the 
United States. That is, NWP authorization will be contingent upon 
obtaining the necessary CZMA consistency concurrence from the State. 
Anyone wanting to perform such activities where pre-construction 
notification to the Corps is not required has an affirmative 
responsibility to present a consistency certification to the 
appropriate State agency for concurrence. Upon concurrence with such 
consistency certifications by the state, the activity would be 
authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).

Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer that an activity 
complies with the terms and conditions of an NWP, prior to commencing 
the proposed work. The requirement to submit a PCN is identified in the 
NWP text. Pre-construction notification requirements may be added to 
NWPs by division engineers through regional conditions. In cases where 
pre-construction notification is not required, a project proponent may 
submit a PCN voluntarily, if he or she wants assurance that the 
activity is authorized by an NWP. A NWP verification is a response to a 
PCN that confirms that a particular activity is authorized by an NWP.
    In response to an NWP verification request or PCN, the district 
engineer reviews the information submitted by the prospective 
permittee. If the district engineer determines that the activity 
complies with the terms and conditions of the NWP, he or she will 
notify the permittee. Special conditions, such as compensatory 
mitigation requirements, may be added to the NWP authorization to 
ensure that the activity results in

[[Page 9179]]

minimal individual and cumulative adverse effects on the aquatic 
environment and other public interest factors. The special conditions 
are incorporated into the NWP verification, along with the NWP text and 
the NWP general conditions.
    If the district engineer reviews the NWP verification request and 
determines that the proposed activity does not comply with the terms 
and conditions of an NWP, he or she will notify the project proponent 
and provide instructions for applying for authorization under a 
regional general permit or an individual permit. District engineers 
will respond to NWP verification requests, submitted voluntarily or 
when required, within 45 days of receiving a complete PCN. Except for 
NWPs 21, 49, and 50, and for proposed NWP activities that require 
Endangered Species Act Section 7 consultation and/or National Historic 
Preservation Act Section 106 consultation, if the project sponsor has 
not received a reply from the Corps within 45 days, he or she may 
assume that the project is authorized, consistent with the information 
in the PCN. For NWPs 21 (Surface Coal Mining Activities), 49 (Coal 
Remining Activities), and 50 (Underground Coal Mining Activities), and 
for proposed NWP activities that require Endangered Species Act Section 
7 consultation and/or National Historic Preservation Act Section 106 
consultation, the project sponsor may not begin work before receiving a 
written NWP verification.

Contact Information for Corps District Engineers

Alabama

    Mobile District Engineer, ATTN: CESAM-RD, 109 St. Joseph Street, 
Mobile, AL 36602-3630.

Alaska

    Alaska District Engineer, ATTN: CEPOA-RD, P.O. Box 6898, Elmendorf 
AFB, AK 99506-6898.

Arizona

    Los Angeles District Engineer, ATTN: CESPL-RG-R, P.O. Box 532711, 
Los Angeles, CA 90053-2325.

Arkansas

    Little Rock District Engineer, ATTN: CESWL-RD, P.O. Box 867, Little 
Rock, AR 72203-0867.

California

    Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, 
Sacramento, CA 95814-2922.

Colorado

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

Connecticut

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Delaware

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.

Florida

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Georgia

    Savannah District Engineer, ATTN: CESAS-RD, 100 West Oglethorpe 
Avenue, Savannah, GA 31401-3640.

Hawaii

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Idaho

    Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third 
Avenue, Walla Walla, WA 99362-1876.

Illinois

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Indiana

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Iowa

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Kansas

    Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Kentucky

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Louisiana

    New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, 
New Orleans, LA 70160-0267.

Maine

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Maryland

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Massachusetts

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Michigan

    Detroit District Engineer, ATTN: CELRE-RG, 477 Michigan Avenue, 
Detroit, MI 48226-2550.

Minnesota

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street 
East, Suite 700, St. Paul, MN 55101-1678.

Mississippi

    Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street, 
Vicksburg, MS 39183-3435.

Missouri

    Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Montana

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Nebraska

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Nevada

    Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922.

New Hampshire

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

New Jersey

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.

New Mexico

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

[[Page 9180]]

New York

    New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New 
York, NY 10278-0090.

North Carolina

    Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890, 
Wilmington, NC 28402-1890.

North Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Ohio

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Oklahoma

    Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave, 
Tulsa, OK 74128-4609.

Oregon

    Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946, 
Portland, OR 97208-2946.

Pennsylvania

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Rhode Island

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

South Carolina

    Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919.

South Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

Tennessee

    Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road, 
Nashville, TN 37214.

Texas

    Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229, 
Galveston, TX 77553-1229.

Utah

    Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, CA 
95814-2922.

Vermont

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Virginia

    Norfolk District Engineer, ATTN: CENAO-REG, 803 Front Street, 
Norfolk, VA 23510-1096.

Washington

    Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-3755.

West Virginia

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Wisconsin

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street 
East, Suite 700, St. Paul, MN 55101-1678.

Wyoming

    Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, 
Omaha, NE 68102-4901.

District of Columbia

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Pacific Territories (American Samoa, Guam, & Commonwealth of the 
Northern Mariana Islands)

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Puerto Rico and Virgin Islands

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Request for Comment

    We are proposing to reissue 48 nationwide permits, as well as the 
general conditions and definitions. We are also proposing to issue two 
new NWPs, two new general conditions, and one new definition. 
Substantive changes to the nationwide permits, general conditions, and 
definitions are discussed below, but we are soliciting comments on all 
the nationwide permits, general conditions, and definitions. Minor 
grammatical changes, the removal of redundant language, and other small 
changes are not discussed in the preamble below. Therefore, commenters 
should carefully read each proposed NWP, general condition, and 
definition in this notice.

NWP Not Proposed for Reauthorization

    NWP 47. Pipeline Safety Program Designated Time Sensitive 
Inspections and Repairs. This NWP was first issued in 2007 in reliance 
on the Pipeline and Hazardous Materials Safety Administration's (PHMSA) 
implementation of a Web-based system called the Pipeline Repair and 
Environmental Guidance System (PREGS). The terms of NWP 47 required 
permittees to report their use of this NWP through PREGS. PHMSA ceased 
their development of PREGS, which the Corps planned to use in order to 
monitor projects authorized by NWP 47. In the place of NWP 47, projects 
subject to PHMSA's Pipeline Safety Program may be eligible for 
authorization under NWP 3, Maintenance, or NWP 12, Utility Line 
Activities, provided those projects meet the terms and conditions of 
the appropriate NWP(s).

Discussion of Proposed Modifications to Existing Nationwide Permits

    If an existing NWP is not listed in this section of the preamble, 
we are proposing to reissue the NWP without changing it.
    NWP 3. Maintenance. We are proposing to clarify that stream channel 
excavation immediately adjacent to the structure or fill being 
maintained that involves discharges of dredged or fill material into 
waters of the United States and/or work in navigable waters of the 
United States is authorized under paragraph (a) and does not require a 
PCN. Examples of stream channel excavation activities that may be 
authorized under paragraph (a) include those necessary to facilitate 
minor deviations in a structure's configuration or filled area. This 
can occur when structures or fills are replaced with larger culverts or 
bridges that improve fish passage. Specifically, we are proposing to 
add ``Any stream channel modification, is limited to the minimum 
necessary for the repair, rehabilitation, or replacement of the 
structure or fill; such modifications must be immediately adjacent to 
the project'' to paragraph (a).
    To simplify and clarify the text, we propose to replace the word 
``and'' with ``and/or'' in the first sentence of paragraph (b) to 
indicate that the activity does not need to include the placement of 
new or additional riprap in order to qualify for the NWP. In paragraph 
(d) we propose to explicitly state beach restoration is not authorized 
by the NWP by removing beach restoration from the first sentence and 
adding a stand-alone sentence. In the Notification provision we propose 
to remove from the first part of the second sentence the phrase 
``[w]here maintenance dredging is proposed'' because paragraph (b) of 
the NWP is the only component of the NWP that requires a PCN. This 
deletion will simplify redundant and confusing text.

[[Page 9181]]

    NWP 5. Scientific Measurement Devices. We are proposing to add a 
sentence to explicitly require the removal of the device and any 
associated structures or fills at the conclusion of the study. 
Specifically, we are proposing to add the following sentence: ``Upon 
completion of the study the measuring device and any other structures 
or fills associated with that device (e.g., anchors, buoys, lines, 
etc.) must be removed and to the maximum extent practicable the site 
must be restored to pre-construction elevations after the removal of 
associated structures.'' We are proposing to add ``meteorological 
stations'' as an example of the types of scientific measuring devices 
authorized by this NWP since such devices are currently being used to 
collect meteorological data for planning offshore wind energy 
generation facilities. We are also proposing to add ``current gages'' 
and ``biological observation devices'' to the list of examples, because 
such instruments may be used to collect data for sites that are being 
considered for hydrokinetic energy generation facilities.
    NWP 6. Survey Activities. We are proposing to modify how 
exploratory trenches are backfilled by stating the work ``must not 
drain a water of the United States.'' This would make the NWP 
consistent with other NWPs that involve backfilling. We also propose to 
adjust the requirements for the temporary pads necessary to provide 
proper levels for equipment used for core sampling. Specifically, we 
propose to remove 25 cubic yard limit and replace it with a \1/10\-acre 
limit. The acreage limit for temporary pads applies to a single and 
complete project, as defined at 33 CFR 330.2(i).
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We 
are proposing to update the name of former Mineral Management Service 
to the Bureau of Ocean Energy Management, Regulation, and Enforcement.
    NWP 12. Utility Line Activities. We are proposing one minor change 
regarding how the calculation of loss of waters of the United States 
for a single and complete project with multiple components is made by 
replacing the phrase ``* * * the total discharge from a * * *'' with `` 
* * * the activity, in combination with all other activities included 
in one * * *'' to the access road component of the NWP. This adjustment 
would match the language from the utility line substation component of 
the NWP.
    NWP 13. Bank Stabilization. To encourage bank stabilization 
activities that use bioengineering techniques and other methods that 
may have less adverse environmental effects, we are proposing to modify 
paragraph (c) by removing the waiver provision and authorizing bank 
stabilization activities that utilize bioengineered techniques to 
exceed an average of one cubic yard per running foot placed along the 
bank below the plane of the ordinary high water mark or the high tide 
line. This change would not authorize bank stabilization activities 
that involve hardening the bank with material such as sheet pile, 
riprap, concrete, etc. if the discharge exceeds one cubic yard per 
running foot. A separate form of Department of the Army authorization, 
such as an individual permit or regional general permit, would be 
required for such activities. Bioengineered techniques can slow erosion 
rates and can have beneficial effects on habitat for macroinvertebrates 
and fish and may include the use of living material or other material 
such as tree revetments or root wads.
    Because some bank stabilization activities require temporary 
structures or fills, or a site to be temporarily dewatered, we propose 
to add language authorizing these associated activities. This proposed 
language is consistent with that used to authorize the same activity in 
NWPs 3, 12, and 14.
    NWP 15. U.S. Coast Guard Approved Bridges. We are proposing to 
modify this NWP by removing the reference to the U.S. Coast Guard 
authorizing the discharge of dredged or fill material into waters of 
the United States as a part of their bridge permit, since their bridge 
permits do not authorize such activities. We are also proposing to 
reference the U.S. Coast Guard's bridge permitting authority under 
Section 9 of the Rivers and Harbors Act of 1899 and other applicable 
laws. The other applicable laws include: The International Bridge Act 
of 1972 (at 33 U.S.C. 535-535(i)), the General Bridge Act of 1946 (at 
33 U.S.C. 525, 528, 530, and 533), the Bridge Act of 1906 (at 33 U.S.C. 
491, 494, and 495); and the Rivers and Harbors Appropriation Act of 
1899 (at 33 U.S.C. 401, 403, 406, and 502). Because a bridge permit 
issued by the U.S. Coast Guard does not cover discharges of dredged or 
fill material into navigable waters of the United States, and such 
discharges are likely to be considered work that modifies those waters, 
we propose to add section 10 authority to this NWP to provide 
authorization under the Rivers and Harbors Act of 1899.
    NWP 20. Response Operations for Oil and Hazardous Substances. We 
are proposing to change the name of this NWP from ``Oil Spill Cleanup'' 
to ``Response Operations for Oil and Hazardous Substances'' to better 
describe the activities and types of materials authorized by the NWP.
    The proposed modification would also authorize a wider set of 
activities, specifically containment and mitigation, associated with a 
response operation's effort to manage a release of oil or hazardous 
substances.
    We are also proposing to modify the NWP to authorize work under a 
wider range of approved response plans or work approved by a Federal 
on-scene coordinator as designated by 40 CFR part 300.
    Additionally, we propose to modify this NWP to authorize training 
exercises for the cleanup of oil and hazardous substance by this NWP. 
These drills can take place on land and water and sometimes involve the 
use of temporary structures and fills used to contain spilt materials.
    NWP 21. Surface Coal Mining Activities. To help make a fully 
informed decision about whether or not to reissue NWP 21, we are 
soliciting comment on three options for this NWP. Option 1 would be to 
not reissue NWP 21. Option 2 would be to reissue NWP 21 with 
modifications, including a \1/2\-acre limit for losses of non-tidal 
waters of the United States, a 300 linear foot limit for the loss of 
stream bed (with a waiver for the loss of intermittent and ephemeral 
stream beds if the district engineer makes a written determination that 
the discharge will result in minimal adverse effects), and a provision 
prohibiting the use of NWP 21 to authorize discharges of dredged or 
fill material into waters of the United States associated with the 
construction of valley fills for surface coal mining activities. Option 
3 would be to reissue NWP 21 with the same modifications as described 
for Option 2, except there would be no provision prohibiting the use of 
NWP 21 to authorize discharges of dredged or fill material into waters 
of the United States associated with the construction of valley fills. 
Options 2 and 3 would not authorize discharges of dredged or fill 
material into tidal waters or non-tidal wetlands adjacent to tidal 
waters.
    The preferred option is Option 2, since the construction of valley 
fills for surface coal mining activities substantially alters the 
watersheds associated with headwater streams and has a greater 
potential to cause more than minimal adverse effects on the aquatic 
environment. Those changes to the watershed cause direct and indirect 
effects to downstream waters.
    Option 1, to not reissue NWP 21, would be consistent with a

[[Page 9182]]

determination that any discharge of dredge or fill material associated 
with surface coal mining activities, in any region of the country, 
might result in more than minimal adverse effects on the aquatic 
environment and thus warrant the more rigorous review associated with 
an individual permit. In contrast, the proposed modifications presented 
in Options 2 and 3 would authorize minor activities associated with 
surface coal mining activities such as the discharges of dredged or 
fill material to construct sediment ponds or minor road crossings. All 
the Options would require larger surface coal mining activities 
involving discharges of dredged or fill material into waters of the 
United States to be authorized by individual permits. In previously 
issued versions of NWP 21, there was no limit on losses of waters of 
the United States. Instead of acreage or linear foot limits the Corps 
relied on the following to ensure minimal adverse effects: (a) The 
implementation of environmental protections through SMCRA (e.g., 
preventing material damage to the hydrologic balance in the surrounding 
areas and minimizing adverse impacts to fish and wildlife habitat); 
and, (b) the requirement that the prospective permittee could not 
commence work in waters of the United States until he or she received 
written verification from the Corps district that the activity was 
authorized by NWP 21. Under Options 2 and 3, the Corps would continue 
to rely on these sources of assurance, along with the proposed new 
acreage and linear foot limits, to ensure minimal adverse effects. The 
Corps believes that this combination of safeguards is sufficient, 
particularly if discharges associated with valley fills are not 
authorized, and has thus identified Option 2 as its preferred option.
    We are also soliciting public comment on additional options that 
should be considered for the reissuance of NWP 21. In addition to the 
three options described above, we are proposing to change the title of 
this NWP by replacing the word ``Operations'' with ``Activities'' 
because the Corps only authorizes discharges of dredged or fill 
material into waters of the United States, not the operation of the 
surface coal mine. The operation of a surface coal mine is regulated 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
In addition, Clean Water Act Section 402 National Pollutant Discharge 
Elimination System permits may authorize discharges of pollutants other 
than dredge or fill material to waters of the United States, including 
those from outfall pipes of sediment ponds.
    On June 11, 2009, the Department of the Army, the Department of the 
Interior (DOI), and the U.S. Environmental Protection Agency (EPA) 
signed a Memorandum of Understanding (MOU) that addresses actions to 
strengthen the environmental review of Appalachian surface coal mining. 
The MOU includes an Interagency Action Plan (IAP) that was developed to 
reduce the adverse environmental effects of surface coal mining 
activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, 
Tennessee, Virginia, and West Virginia, while assuring that future 
mining remains consistent with the Clean Water Act and SMCRA. One of 
the short-term action items the Army agreed to do under the IAP was to 
issue a Federal Register notice proposing to modify NWP 21 to preclude 
its use to authorize discharges of fill material into streams for 
surface coal mining activities in the Appalachian region of these six 
states and to seek public comment on this proposal. On July 15, 2009, 
the Corps published a Federal Register notice (74 FR 34311) to solicit 
public comment on this proposal. As an interim measure to provide 
environmental protection while the Corps evaluated the comments 
received on the proposal to modify NWP 21, on June 18, 2010, the Corps 
suspended NWP 21 in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia (see 75 FR 34711).
    Since the current NWP 21 will expire on March 18, 2012, it would be 
more prudent to address the modification of NWP 21 in today's proposal, 
instead of making a separate decision on the July 15, 2009, proposal to 
modify NWP 21 in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia. We also believe 
that substantial changes to NWP 21 are necessary to ensure, at a 
national level, that it authorizes only those discharges of dredged or 
fill material into waters of the United States associated with surface 
coal mining activities that have minimal individual and cumulative 
adverse effects on the aquatic environment and other public interest 
review factors. Nationwide permit 21 has been used to authorize surface 
coal mining activities in at least 20 other states, such as states in 
the west and southeast, and we believe it is necessary to impose an 
acreage limit on NWP 21 to ensure that the surface coal mining 
activities in those other states result in minimal adverse effects.
    Division engineers have the authority to regionally condition this 
NWP to impose an acreage or linear foot limit or other special 
conditions, if there are concerns for the aquatic environment in a 
particular district, watershed, or other geographic region. The 
proposed modification of NWP 21 will provide an NWP for minor 
activities associated with surface coal mining activities. Pre-
construction notification is still required before any activities 
commence in waters of the United States and the applicant must receive 
authorization in writing from the Corps before beginning the activity.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. We are proposing to add ``the removal of small dams'' to 
the list of examples of activities that can be authorized by this NWP. 
In the reversion provision we are proposing to remove the phrase ``that 
has not been abandoned'' that modifies the term ``prior converted 
cropland'' because areas of prior converted cropland being used for 
wetland or stream enhancement or restoration that are eligible for this 
provision are subject to a binding agreement with the Natural Resources 
Conservation Service and have not been abandoned, so the qualifier is 
unnecessary.
    We are proposing to modify ``Notification'' provisions (1) and (2) 
by having stream restoration, rehabilitation, and enhancement 
activities conducted in accordance with binding agreements with the 
appropriate agencies or as voluntary actions documented by NRCS or a 
USDA Technical Service Provider be subject to the reporting provision 
instead. Additionally, we propose to modify notification provision (1) 
by adding the United States Forest Service to the list of Federal 
agencies that can develop stream or wetland enhancement, restoration, 
or establishment agreements. The ``Notification'' provision requires 
the permittee or appropriate Federal or state agency to notify the 
district engineer in accordance with general condition 30 (formerly 
general condition 27).
    NWP 29. Residential Developments. We are proposing to modify the 
waiver provision for activities resulting in the loss of greater than 
300 linear feet of intermittent and ephemeral stream bed to clarify 
that the district engineer will only issue the waiver after making a 
project-specific written determination that the activity will result in 
minimal adverse effects.
    NWP 31. Maintenance of Existing Flood Control Facilities. We are 
proposing to add language that states, in those cases where a Corps 
permit is required, the NWP authorizes the removal of vegetation from 
levees

[[Page 9183]]

associated with a flood control project. The removal of vegetation from 
a flood control levee may require a permit under Section 10 of the 
Rivers and Harbors Act of 1899 if it is considered to be work in 
navigable waters of the United States. Vegetation removal may also 
require Clean Water Act Section 404 authorization if it involves 
discharges of dredged or fill material into waters of the United 
States.
    NWP 39. Commercial and Institutional Developments. We are proposing 
to modify the waiver provision for activities resulting in the loss of 
greater than 300 linear feet of intermittent and ephemeral stream bed 
to clarify that the district engineer will only issue the waiver after 
making a project-specific written determination that the activity will 
result in minimal adverse effects.
    NWP 40. Agricultural Activities. We are proposing to modify the 
text of this NWP to impose a limit on stream bed impacts that mirrors 
the limits in oth